AI Structured Summary
Not yet generated for this judgment
Judgment
N. Paul Vasanthakumar, J.—In this petition, petitioner seeks to quash of order of punishment of removal from service passed against him by
the first respondent on 25.2.1993.
The necessary facts for disposal of the writ petition as stated in the affidavit are that the petitioner was appointed as a regular Record Clerk from
16.5.1983. While he was working at Thathuvanchery Checkpost, there was a raid by the Vigilance and Anti Corruption Wing of Police
Department on 19.3.1988 and an amount of Rs. 10/- was recovered from the petitioner which was allegedly accepted by him as bribe. Petitioner
was placed under suspension on 19.3.1988 and a charge memo was also issued to him which reads as follows,
While you (Accused Officer) were functioning as Record Clerk, Commercial Taxes Checkpost, Thathuvancherry actuated by corrupt motive and
in abuse of your official position and authority, had committed gross misconduct and misdemeanour and failed to maintain absolute integrity and
devotion to duty in as much as you (Accused Officer) demanded and accepted an illegal gratification of Rs. 10/- from Thiru P.Veeraiyan, S/o.Thiru
Paramasivam, 16-A, Perumandi North Street, Mela Cauvery, Kumbakonam on 19.3.88 at about 14.10 hours at the Commercial Taxes
Checkpost, Thathuvancheri, for allowing the van TCY 3843 which was loaded with cattle to pass through the checkpost without any hindrance
and thereby violated Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973.
Petitioner denied the charge by filing his explanation. Not satisfied with the explanation, the matter was referred for conducting enquiry by the
Tribunal for Disciplinary Proceedings.
The Tribunal conducted enquiry and held that the petitioner accepted a sum of Rs. 10/- from PW-1 a few minutes before 2.15 p.m. on
19.3.1988 at the Commercial Taxes Checkpost, Thathuvancherry and thereby violated Rule 20 of the Tamil Nadu Government Servants Conduct
Rules, 1973. However, the remaining parts of the charge are held not proved. After enquiry by the Tribunal, petitioner was issued with a show
cause notice on 3.11.1992 and after going through the reply, petitioner was removed from service from 25.2.1993. According to the petitioner, he
filed an appeal before the second respondent on 24.3.1993 and the same was not disposed of and therefore he filed the original application before
the Tribunal on the ground that the amount of Rs. 10/- was not recovered from the petitioner but from a place near to his seat and there is no
positive evidence that he demanded and accepted the money voluntarily and consciously. According to the petitioner the acceptance of the said
amount is proved by the Tribunal only on probabilities, but without any positive evidence and hence there is no criminal misconduct on the part of
the petitioner, for which the penalty of removal from service is highly excessive. It is further stated in the affidavit that mere presence of Rs. 10/- in
the premises in a trap case is not sufficient to substantiate the charge of demand and acceptance of bribe.
In the additional grounds raised by the petitioner it is stated that the disciplinary authority was having a pre-determined mind to punish the
petitioner and also alleged that Rules 10(a) and 10(b) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955, are not
followed.
No counter affidavit was filed on behalf of the respondents.
Mr. R.Muthukannu, learned counsel appearing for the petitioner argued that even according to the enquiry report, only a part of the charge was
proved, wherein the demand of bribe is not proved. The learned counsel reiterated the contentions raised in the affidavit. Finally learned counsel
submitted that in any event the punishment awarded is highly excessive and disproportionate with the charge framed against the petitioner.
The learned Government Advocate submitted that based on the enquiry report of the Tribunal for Disciplinary proceedings, the disciplinary
authority imposed punishment and the charge being acceptance of bribe, serious view was taken by the department and the petitioner was
removed from service and hence there is no illegality in the impugned order.
I have considered the rival submissions of the learned counsel appearing for the petitioner as well as the learned Government Advocate.
The point for consideration in this case is whether the punishment of removal of service imposed on the petitioner based on the enquiry report, in
which only part of the charge was found to have been proved, is sustainable.
The Tribunal for Disciplinary Proceedings conducted the enquiry on 10.1.1991, 13.2.1991, 14.3.1991, 8.5.1991, 10.6.1991, 16.7.1991,
30.7.1991, 16.8.1991 and heard the arguments on 27.8.1991. During the course of enquiry five prosecution witnesses were examined and one
defence witness was examined on behalf of the petitioner herein. Tribunal also marked Exs.P-1 to P-8 apart from two material objects. The
Tribunal for Disciplinary Proceedings, after elaborate enquiry found that acceptance of Rs. 10/- from PW-1 is proved. The said finding is a finding
of fact and the same cannot be interfered with under Article 226 of Constitution of India. Petitioner fully participated in the enquiry and there is no
procedural violation in the conduct of disciplinary proceeding, particularly enquiry. The only defence of the petitioner is that there is no corrupt
motive or criminal misconduct on his part. The said defence is available only in criminal cases and not in the departmental proceedings. The
preponderance of evidence establishes the guilt of the petitioner in accepting the bribe of Rs. 10/- which was also recovered at the time of raid by
the Vigilance and Anti Corruption Wing. This act of the petitioner is clearly in violation of Rule 20 of the Tamil Nadu Government Servants
Conduct Rules.
The learned counsel for the petitioner placed reliance on the decisions reported in 1990 (Supp) SCC 12 State of U.P. v. Ram Asrey; Union of
India (UOI) and Others Vs. Iqbal Singh Cheema, ; Smt. Meena Hemke Vs. The State of Maharashtra, ; and 2006 (1) Supreme 1 T.
Subramaniam v. The State of Tamil Nadu. All the above decisions relate to criminal cases, where the proof required is beyond any reasonable
doubt and the motive also should be proved. Therefore, the said judgments will not help the petitioner in any manner.
The learned counsel for the petitioner also placed reliance on a Division Bench decision of this Court reported in (2006) 1 MLJ 48 R.M.
Palaniappan v. The Transport Commissioner, Chennai wherein this Court set aside the punishment on the ground of not supplying materials or
required particulars and denied the opportunity to defend the case of the petitioner by the Enquiry Officer. But in the present case, petitioner fully
participated in the enquiry and was given full opportunity to defend his case, who had also produced witness on his behalf. Therefore the ratio laid
down in the above cited Division Bench judgment cannot be applied to the case on hand.
Petitioner having been found guilty of corruption charge, the quantum of money accepted by him is immaterial.
(a) The Honourable Supreme Court in the decision reported in (2006) 1 SCC 63 Karnataka Bank Ltd. v. A.L. Mohan Rao in paragraphs 4 and 6
held that the High Court committed an error in allowing the writ petition and ordering reinstatement on sympathetic ground, even though it found
that the misconduct had been proved. It is further held that it is not for the courts to interfere in cases of gross misconduct of this nature with the
decision of the disciplinary authority so long as the inquiry has been fair and proper and misconduct proved and that it is for the disciplinary
authority to decide what is the fit punishment.
(b) A Division Bench of this Court in the decision reported in C. Jambunathan Vs. The Management of Dheeran Chinnamalai Transport
Corporation Ltd., (now known as the Tamil Nadu Transport Corporation) Division-II Ltd. and The Presiding Officer, Labour Court, while dealing
with the case of misappropriation, placing reliance on the decision of the Honourable Supreme Court reported in Janatha Bazar (South Kanara
Central Co-operative Whole Sale Stores Limited) Etc. Vs. The Secretary, Sahakari Noukarara Sangha Etc., , held that once the act of
misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstalling the
employee in service. The Division Bench also placed reliance on another decision of the Supreme Court reported in Municipal Committee,
Bahadurgarh Vs. Krishan Behari and others, wherein it was held that in cases of misappropriation, there cannot be any other punishment other than
dismissal. It is further held that any sympathy shown in such cases is totally uncalled for and opposed to public interest and that the amount
misappropriated may be small or large, but it is the act of misappropriation that is relevant.
(c) In another Division Bench decision of this Court reported in The Management of Hindustan Teleprinters Employees Co-operative Thrift and
Credit Society Ltd. Vs. The Presiding Officer, Principal Labour Court and N.N. Nachiappan, in paragraph 14 it is held that in case of
misappropriation, whether, of small amount or large amount, the only punishment which can be given is dismissal.
In the case on hand, the acceptance of bribe by the petitioner is proved. The contention of the learned counsel for the petitioner that the
amount involved is only Rs. 10/- is immaterial, in view of the decisions cited supra. The disciplinary authority considered the request of the
petitioner to take lenient view in the matter and rejected the same and passed the order of punishment removing the petitioner from service. This
Court sitting under Article 226 of the Constitution of India, cannot substitute its view in the matter of punishment imposed by the disciplinary
authority.
With regard to the contention raised in the additional grounds that the first respondent failed to follow Rule 10(a) and (b) of the Tamil Nadu
Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955, the learned Government Advocate submitted that the petitioner fully participated in
the enquiry proceedings before the Tribunal for Disciplinary Proceedings and no procedural violation or denial of opportunity was complained of
with regard to the conduct of enquiry. Therefore, according to the Government Advocate, not following the Rule 10(a) and (b), has not caused any
prejudice to the petitioner. This is because the petitioner was asked to submit his explanation while serving a copy of enquiry report, for which
petitioner also submitted a detailed reply on 17.12.1992, in which the alleged violation of Rule 10(a) and (b) is not complained. On the other hand,
the petitioner had only pleaded for mercy and to impose lesser punishment. Even in the affidavit filed in support of the writ petition or in the
additional affidavit filed on 23.2.2006, the prejudice caused to the petitioner is not pleaded. Hence I am of the view that the said ground also will
not come to the rescue of the petitioner.
There is no merit in the writ petition and consequently the same is dismissed. No costs.